High Court Shoots Down Dukes Class Action

The U.S. Supreme Court unanimously held June 20 that the 9th U.S. Circuit Court of Appeals erred by certifying a class action involving about 1.5 million women who worked for Wal-Mart in a case alleging discrimination in pay and promotions. The decision in the case, Wal-Mart v. Dukes, is a big victory for the retailer and a relief to other national employers.

The class in this case would have included all women who worked at a domestic Wal-Mart store since Dec. 26, 1998. Wal-Mart could have been ordered to pay millions of dollars if it lost the case at trial.

In a majority opinion written by Justice Antonin Scalia, the court held that this huge class lacks commonality that is capable of classwide resolution. "Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all of the class members' claims for relief will produce a common answer to the crucial question why was I disfavored," Scalia wrote.

There are 3,400 domestic Wal-Mart stores, Scalia wrote, and the plaintiffs filed around 120 affidavits relating to about 235 of those stores to support their allegations of discrimination. "More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart's operations at all," he wrote. "Even if every single one of these accounts is true, that would not demonstrate that the entire company 'operate[s] under a general policy of discrimination,' . . . which is what respondents must show to certify a companywide class."

Justice Ruth Bader Ginsburg filed an opinion concurring in the result but dissenting from the method; Ginsburg said the class might be certifiable if plaintiffs show that common class questions predominate over issues affecting individuals and that a class action is superior to other ways of adjudicating the claims. Justices Breyer, Sotomayor, and Kagan joined her opinion.

The U.S. Chamber of Commerce and several other organizations filed briefs in support of Wal-Mart in the case, which was argued before the high court in March 2011.